Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Occupational Safety and Health Review Commission

[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Rules and Regulations]
[Pages 39283-39289]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16808]
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2205
Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the Occupational Safety and Health
Review Commission
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Review Commission
("OSHRC") is revising part 2205, which it promulgated to implement
section 504 of the Rehabilitation Act of 1973, as amended. These
revisions account for statutory and regulatory changes, and incorporate
procedures for filing complaints under section 508 of the
Rehabilitation Act of 1973, as amended. OSHRC is also making various
corrections and technical amendments to this part.
DATES: Effective July 6, 2011.
FOR FURTHER INFORMATION CONTACT: Ron Bailey, Attorney-Advisor, Office
of the General Counsel, by telephone at (202) 606-5410, by e-mail at
rbailey@oshrc.gov, or by mail at: 1120-20th Street, NW., Ninth Floor,
Washington, DC 20036-3457.
SUPPLEMENTARY INFORMATION: OSHRC published a notice of proposed
rulemaking on May 24, 2011, 76 FR 30064, which would revise 29 CFR part
2205. Interested persons were afforded an opportunity to participate in
the rulemaking process through submission of written comments on the
proposed rule. OSHRC received no public comments. We have reviewed the
proposed rule and now adopt it as the agency's final rule.
I. Background
Section 508 of the Rehabilitation Act requires Federal agencies
that develop, procure, maintain, or use electronic and information
technology to "ensure, unless undue burden would be imposed on the
department or agency," that this technology allows (1) Federal
employees who are individuals with disabilities "to have access to and
use of information and data that is comparable to the access to and use
of the information and data by Federal employees who are not
individuals with disabilities," and (2) members of the public who are
individuals with disabilities and are "seeking information or services
from a Federal department or agency to have access to and use of
information and data that is comparable to the access to and use of the
information and data by such members of the public who are not
individuals with disabilities." 29 U.S.C. 794d(a)(1)(A). In the event
that this requirement imposes an undue burden, Federal agencies must
provide the relevant information and data using an "alternative
means." 29 U.S.C. 794(a)(1)(B). An administrative complaint filed for
an alleged violation of section 508 of the Rehabilitation Act must be
filed with the agency "alleged to be in noncompliance," and must be
processed by the agency using "the complaint procedures established to
implement" section 504 of the Rehabilitation Act. 29 U.S.C.
794d(f)(2). Therefore, OSHRC is amending its procedures in part 2205,
which effectuates section 504, to also incorporate the requirements set
forth in section 508.
Exercising its statutory authority under section 508 of the
Rehabilitation Act, 29 U.S.C. 794(a)(2), the Architectural and
Transportation Barriers Compliance Board ("Access Board") has issued
standards for electronic and information technology, 36 CFR part 1194.
These standards define electronic and information technology for
purposes of section 508 and provide the technical and functional
performance criteria necessary to implement the accessibility
requirements specified above. As detailed below, in amending part 2205,
OSHRC relies on the definitions and requirements set forth in the
Access Board's standards.
Turning to the specific amendments, OSHRC is adding a sentence to
Sec. 2205.101 ("Purpose") indicating that part 2205 effectuates
section 508 and summarizing the purpose of that section. OSHRC also is
adding a clause to Sec. 2205.102 ("Application") indicating that
part 2205 applies to the agency's "development, procurement,
maintenance, and use of electronic and information technology," and a
new section at Sec. 2205.135 ("Electronic and information technology
requirements") that thoroughly explains the agency's responsibilities
under section 508. The additions are consistent with language used by
the Access Board. 36 CFR 1194.1, .2. Additionally, in Sec. 2205.103
("Definitions"), OSHRC is (1) adding a definition describing the
source material for section 508--a similar sentence already exists
describing the source material for section 504; (2) adding the
definitions of "Electronic and Information technology" and
"Information technology" set forth by the Access Board, 39 CFR
1194.4; and (3) revising the definition of "Complete complaint" to
indicate its coverage of violations alleged under section 508, as well
as section 504. Further, OSHRC is adding language to Sec. 2205.111
("Notice") to extend the notice requirements to section 508.
OSHRC also is revising the procedures in Sec. 2205.170
("Compliance procedures") to provide more detailed instructions for
filing and processing complaints and appeals alleging violations of
section 504, and to incorporate instructions for those who allege
violations of section 508. As noted, section 508 directs agencies to
use the same procedures for processing section 508 complaints as they
use for section 504 complaints. The EEOC, however, recently explained
in its own notice of rulemaking that "[t]he part 1614 process is
reserved for complaints alleging employment discrimination," and that
an allegation under section 508 of "discrimination in access to
electronic and information technology * * * is outside the scope of
part 1614." Therefore, the revisions to Sec. 2205.170(a) and (b) make
clear that part 1614 is not applicable to section 508 complaints, but
that OSHRC's procedures specifically set forth in its regulations are
applicable to both section 504 and 508 complaints.
In addition to amendments resulting from section 508, OSHRC is
making the following deletions, and corrections and amendments to part
2205. As to the deletions, several provisions include compliance
deadlines that have already expired. Section 2205.110 requires that
OSHRC complete, by August 24, 1987, a self-evaluation of policies and
practices that do not or may not meet the requirements of the
regulation. It further requires that a description of areas examined,
problems identified, and modifications made be kept on file for at
least three years. Also, paragraph (c) of Sec. 2205.150 requires OSHRC
to "comply with the obligations established under [paragraphs (a) and
(b)] by October 21, 1986, except that where structural changes in
facilities are undertaken, such changes shall be made by August 22,
1989, but in any event as expeditiously as possible"; and paragraph
(d) of that provision requires OSHRC to "develop, by February 23,
1987, a transition plan setting forth the steps necessary to complete
[structural changes to facilities]" in the event that such changes are
required. Because the latest of these given time frames has long
passed, Sec. 2205.110 and paragraphs (c) and (d) of Sec. 2205.150 are
deleted.
Also, the cross-references in several provisions are outdated. The
fourth definition of "qualified handicapped person," found at Sec.
2205.103, cross-references 29 CFR 1613.702(f), and two other
provisions--Sec. Sec. 2205.140 and .170(b)--cross-reference 29 CFR
part 1613. Part 1613, however, was superseded by part 1614 in 1992.
Federal Sector Equal Employment Opportunity, 57 FR 12634 (Apr. 10,
1992) (final rule). The current version of Sec. 1614.203(b) cross-
references and adopts all definitions in part 1630, and the definition
of "qualified individual with a disability" is at 29 CFR 1630.2(m).
Therefore, the cross-reference in Sec. 2202.103 is changed to 29 CFR
1630.2(m), and the cross-reference to part 1613 in Sec. Sec. 2205.140
and .170(b) is changed to part 1614. Further, Sec. 2205.151 cross-
references 41 CFR 101-19.600 to 101-19.607, which previously set forth
the standard for the Architectural Barriers Act, 42 U.S.C. 4151-4157.
In 2002, the regulatory provisions pertaining to the standard were re-
designated as 41 CFR 102-76.60 to 102-76.95. Real Property Policies, 67
FR 76882 (Dec. 13, 2002) (final rule). Section 2205.151 is therefore
amended to reflect this re-designation.
Additionally, only the acronym for "telecommunication devices for
deaf persons" is now used in Sec. 2205.160, as both the phrase and
acronym already appear in Sec. 2205.103; the head of the agency is now
referred to as the "Chairman" throughout the part, as this term is
used in the OSH Act itself, 29 U.S.C. 661(a); and, in Sec. 2205.103,
additional legislative history is added to the definition of "Section
504." Finally, the 1992 amendments to the Rehabilitation Act, Public
Law 102-569, 106 Stat. 4344, which replaced the term "handicap" with
the term "disability," has resulted in the amendment of all such
references in part 2205.
II. Statutory and Executive Order Reviews
Executive Orders 12866 and 13132, and the Unfunded Mandates Reform
Act of 1995: OSHRC is an independent regulatory agency and, as such, is
not subject to the requirements of E.O. 12866, E.O. 13132, or the
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
Regulatory Flexibility Act: OSHRC certifies under the Regulatory
Flexibility Act, 5 U.S.C. 605(b), that these rules will not have a
significant economic impact on a substantial number of small entities,
because it applies exclusively to a Federal agency and individuals
accessing the services of a Federal agency. For this reason, a
regulatory flexibility analysis is not required.
Paperwork Reduction Act of 1995: OSHRC has determined that the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because
these rules do not contain any information collection requirements that
require the approval of OMB.
Congressional Notification: These rules do not constitute a major
rule under the Congressional Review Act, 5 U.S.C. 804(2).
List of Subjects in 29 CFR Part 2205
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Individuals
with disabilities, Access to electronic and information technology.
Signed at Washington, DC, on the 28th day of June 2011.
Thomasina V. Rogers,
Chairman.
For the reasons set forth in the preamble, Chapter XX, Part 2205 of
Title 29, Code of Federal Regulations, is revised to read as follows:
PART 2205--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OCCUPATIONAL
SAFETY AND HEALTH REVIEW COMMISSION AND IN ACCESSIBILITY OF
COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY
Sec.
2205.101 Purpose.
2205.102 Application.
2205.103 Definitions.
2205.104-2205.10 [Reserved]
2205.111 Notice.
2205.112-2205.129 [Reserved]
2205.130 General prohibitions against discrimination.
2205.131-2205.134 [Reserved]
2205.135 Electronic and information technology requirements.
2205.136-2205.139 [Reserved]
2205.140 Employment.
2205.141-2205.148 [Reserved]
2205.149 Program accessibility: Discrimination prohibited.
2205.150 Program accessibility: Existing facilities.
2205.151 Program accessibility: New construction and alterations.
2205.152-2205.159 [Reserved]
2205.160 Communications.
2205.161-2205.169 [Reserved]
2205.170 Compliance procedures.
2205.171-2205.999 [Reserved]
Authority: 29 U.S.C. 794; 29 U.S.C. 794d.
Sec. 2205.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of disability in programs or
activities conducted by Executive agencies or the United States Postal
Service. This part also effectuates section 508 of the Rehabilitation
Act of 1973, as amended, with respect to the accessibility of
electronic and information technology developed, procured, maintained,
or used by the agency.
Sec. 2205.102 Application.
This part applies to all programs or activities conducted by the
agency and to its development, procurement, maintenance, and use of
electronic and information technology.
Sec. 2205.103 Definitions.
For purposes of this part, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with
hearing aids, telecommunication devices for deaf persons (TDD's),
interpreters, notetakers, written materials, and other similar services
and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504 or section 508.
It shall be signed by the complainant or by someone authorized to do so
on his or her behalf. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.
Electronic and Information technology includes information
technology and any equipment or interconnected system or subsystem of
equipment that is used in the creation, conversion, or duplication of
data or information. The term electronic and information technology
includes, but is not limited to, telecommunications products (such as
telephones), information kiosks and transaction machines, World Wide
Web sites, multimedia, and office equipment such as copiers and fax
machines. The term does not include any equipment that contains
embedded information technology that is used as an integral part of the
product, but the principal function of which is not the acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. For example, HVAC (heating, ventilation, and air
conditioning) equipment such as thermostats or temperature control
devices, and medical equipment where information technology is integral
to its operation are not information technology.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with a disability means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems: Neurological; musculoskeletal; special
sense organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and
endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, and drug
addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of
this definition but is treated by the agency as having such an
impairment.
Information technology means any equipment or interconnected system
or subsystem of equipment that is used in the automatic acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. The term information technology includes computers,
ancillary equipment, software, firmware and similar procedures,
services (including support services), and related resources.
Qualified individual with a disability means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with a disability who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or
activity; and
(3) Qualified individual with a disability is defined for purposes
of employment in 29 CFR 1630.2(m), which is made applicable to this
part by Sec. 2205.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810). As used in this part, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally
assisted programs.
Section 508 means section 508 of the Rehabilitation Act of 1973,
Pub. L. 93-112, Title V, section 508, as added by Pub. L. 99-506, Title
VI, section 603(a), Oct. 21, 1986, 100 Stat. 1830, and amended Pub. L.
100-630, Title II, section 206(f), Nov. 7, 1988, 102 Stat. 3312; Pub.
L. 102-569, Title V, section 509(a), Oct. 29, 1992, 106 Stat. 4430;
Pub. L. 105-220, Title IV, section 408(b), Aug. 7, 1998, 112 Stat.
1203.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Sec. Sec. 2205.104-2205.110 [Reserved]
Sec. 2205.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the Chairman finds
necessary to apprise such persons of the protections against
discrimination assured them by section 504 or the access to technology
provided under section 508 and this regulation.
Sec. Sec. 2205.112-2205.129 [Reserved]
Sec. 2205.130 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis
of disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability--
(i) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is necessary
to provide qualified individuals with disabilities with aid, benefits,
or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with a
disability the opportunity to participate in programs or activities
that are not separate or different, despite the existence of
permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The agency, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with disabilities
to discrimination on the basis of disability.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may the
agency establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by
the agency are not, themselves, covered by this part.
(c) The exclusion of individuals without disabilities from the
benefits of a program limited by Federal statute or Executive order to
individuals with disabilities or the exclusion of a specific class of
individuals with disabilities from a program limited by Federal statute
or Executive order to a different class of individuals with
disabilities is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
Sec. Sec. 2205.131-2205.134 [Reserved]
Sec. 2205.135 Electronic and information technology requirements.
(a) In accordance with section 508 and the standards published by
the Architectural and Transportation Barriers Compliance Board at 36
CFR part 1194, the agency shall ensure, absent an undue burden, that
the electronic and information technology developed, procured,
maintained, or used by the agency allows:
(1) Individuals with disabilities who are agency employees or
applicants to have access to and use of information and data that is
comparable to the access to and use of information and data by agency
employees who are individuals without disabilities; and
(2) Individuals with disabilities who are members of the public
seeking information or services from the agency to have access to and
use of information and data that is comparable to the access to and use
of information and data by such members of the public who are not
individuals with disabilities.
(b) When development, procurement, maintenance, or use of
electronic and information technology that meets the standards at 36
CFR part 1194 would impose an undue burden, the agency shall provide
individuals with disabilities covered by this section with the
information and data involved by an alternative means of access that
allows the individuals to use the information and data.
Sec. Sec. 2205.136-2205.139 [Reserved]
Sec. 2205.140 Employment.
No qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any
program or activity conducted by the agency. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791), as established by the Equal Employment
Opportunity Commission in 29 CFR part 1614, shall apply to employment
in federally conducted programs or activities.
Sec. Sec. 2205.141-2205.148 [Reserved]
Sec. 2205.149 Program accessibility: discrimination prohibited.
Except as otherwise provided in Sec. 2205.150, no qualified
individual with a disability shall, because the agency's facilities are
inaccessible to or unusable by individuals with disabilities, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 2205.150 Program accessibility: existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This
paragraph (a) does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden
of proving that compliance with this paragraph (a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Chairman or his or her
designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or
such burdens, the agency shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits and
services of the program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with disabilities. The agency
is not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give
priority to those methods that offer programs and activities to
qualified individuals with disabilities in the most integrated setting
appropriate.
(2) Historic preservation programs. In meeting the requirements of
paragraph (a) of this section in historic preservation programs, the
agency shall give priority to methods that provide physical access to
individuals with disabilities. In cases where a physical alteration to
an historic property is not required because of paragraph
(a)(2) or (3) of this section, alternative methods of achieving program
accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with disabilities into
or through portions of historic properties that cannot otherwise be
made accessible; or
(iii) Adopting other innovative methods.
Sec. 2205.151 Program accessibility: new construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with disabilities. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 102-76.60 to 102-76.95, apply to buildings
covered by this section.
Sec. Sec. 2205.152-2205.159 [Reserved]
Sec. 2205.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with a disability.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, TDD's or equally effective telecommunication systems
shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and
administrative burdens. In those circumstances where agency personnel
believe that the proposed action would fundamentally alter the program
or activity or would result in undue financial and administrative
burdens, the agency has the burden of proving that compliance with this
section would result in such alteration or burdens. The decision that
compliance would result in such alteration or burdens must be made by
the Chairman or his or her designee after considering all agency
resources available for use in the funding and operation of the
conducted program or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the agency shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with
disabilities receive the benefits and services of the program or
activity.
Sec. Sec. 2205.161-2205.169 [Reserved]
Sec. 2205.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs or activities conducted by the agency in
violation of section 504. Paragraphs (c) through (j) of this section
also apply to all complaints alleging a violation of the agency's
responsibility to procure electronic and information technology under
section 508, whether filed by members of the public or agency employees
or applicants.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c)(1) Any person who believes that he or she has been subjected to
discrimination prohibited by this part or that the agency's procurement
of electronic and information technology has violated section 508, or
an authorized representative of such person, may file a complaint with
the Executive Director.
(2) The Executive Director shall be responsible for coordinating
implementation of this section. Complaints shall be sent to Executive
Director, Occupational Safety and Health Review Commission, One
Lafayette Centre, 1120-20th Street NW., 9th Floor, Washington, DC
20036-3457. Complaints shall be filed with the Executive Director
within 180 days of the alleged act of discrimination. A complaint shall
be deemed filed on the date it is postmarked, or, in the absence of a
postmark, on the date it is received by the agency. The agency may
extend this time period for good cause.
(d)(1) The agency shall accept a complete complaint that is filed
in accordance with paragraph (c) of this section and over which it has
jurisdiction. The Executive Director shall notify the complainant and
the respondent of receipt and acceptance of the complaint.
(2) If the agency receives a complaint that is not complete, the
Executive Director shall notify the complainant, within 30 days of
receipt of the incomplete complaint, that additional information is
needed. If the complainant fails to complete the complaint within 30
days of receipt of this notice, the Executive Director shall dismiss
the complaint without prejudice and shall so inform the complainant.
(3) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(e) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by individuals with disabilities.
(f) Within 180 days of the receipt of a complete complaint for
which it has jurisdiction, the agency shall notify the complainant of
the results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(g) Appeals of the findings of fact and conclusions of law or
remedies must be filed with the Chairman by the complainant within 90 days of receipt
from the agency of the letter required by paragraph (f) of this
section. The agency may extend this time for good cause. Appeals shall
be sent to the Chairman, Occupational Safety and Health Review
Commission, One Lafayette Centre, 1120-20th Street, NW., 9th Floor,
Washington, DC 20036-3457. An appeal shall be deemed filed on the date
it is postmarked, or, in the absence of a postmark, on the date it is
received by the agency. It should be clearly marked "Appeal of Section
504 decision" or "Appeal of Section 508 decision" and should contain
specific objections explaining why the complainant believes the initial
decision was factually or legally wrong. Attached to the appeal letter
should be a copy of the initial decision being appealed.
(h) Timely appeals shall be accepted and decided by the Chairman.
The Chairman shall notify the complainant of the results of the appeal
within 60 days of the receipt of the request. If the Chairman
determines that additional information is needed from the complainant,
he or she shall have 60 days from the date of receipt of the additional
information to make his or her determination on the appeal.
(i) The time limits cited in paragraphs (f) and (h) of this section
may be extended with the permission of the Assistant Attorney General.
(j) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies or may contract with non-
Federal entities to conduct such investigations, except that the
authority for making the final determination may not be delegated.
Sec. Sec. 2205.171-2205.999 [Reserved]
[FR Doc. 2011-16808 Filed 7-5-11; 8:45 am]
BILLING CODE 7600-01-P

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